Monday, August 5, 2013

Disabilities can't be restricted to those in the PwD Act 1995

Dear Colleages,

The present medical model of disability in the Disability Act and as understood by the Courts has some serious shortcomings. The etiology based labels or medical condition based labels are counterproductive so far as the constitutional mandate of ensuring equality and non-discrimination is concerned. The benefits of schemes meant for social justice can not be just restricted to persons whose condition or type of disability reflects in the law.

What is needed is to look at the restrictions that the person faces in the community due to the particular condition. The forumula that Amended Americans with Disabilities Act (came in to force on Jan 01, 2009) adopts is quite reasonable. It accepts you for the disability benefits if :

(a) If you have a physical or mental problem that substantially limits one or more of your “major life activities”.
(b) You have a record of having had such a problem in the past.
(c) Other people think you have such a problem, even if you do not actually have it.

What are major life activities

Some of the “major life activities” covered by ADA include but are not limited to caring for yourself, doing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The amended ADA has made some major changes to the way the definition of disability had been interpreted under ADA in the past. The 2008 Amendments Act includes major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. These changes can help people with cancer, because in the past they often had a hard time meeting the definition of disability.

Bombay High Court sets a precedent

The Bombay HC has in the below case issued notices to the Coordination Committees  - both Centre and State - established under the Persons with Disabilities (Equal opportunities, proteciton of Rights and full participation) Act 1995 Central Govt.to respond to a similar case wherein the petitioner Vinod Tambe - a personal rehabilitated after cancer  -   has sought benefits available to persons with disabities under the Act.

Hon'ble Chief Justice Mohit Shah has been known to be a very sensitive judge so far as  matter related to those with disabilities and marginalised segments are concerned. He has been known to take suo moto notice of matters affecting the rights of disabled while he was with Gujarat High Court and championed the cause of persons with disabilities.

Disabilities Act not superseding but supplementing

The Maharasthra Government had through a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. And the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 being a beneficial legislation only supplemented what existed before and by its enactment, no pre-existing right  could be taken away by the state in such a blatant manner. Therefore, even if if caner-cured is not included in the medical definitions of the Disabilities Act, the said category continues to get the benefits, technically.

Other unreported cases

I personally know of a case in Valsad, Gujarat where a gentleman met with a serious car accident during which a metal rod of the car entered his body from a little lower than the urinal part on the front side of the body and came out from the spinal cord i.e. back side of his body thereby tearing his body and damaging the sphincter, anus, rectum and the spinal cord. He was somehow saved but with a colostomy. 

The Disability Certificate granted by Civil Hospital Valsad says he is a case of "Permanent Colostomy  + L1 Vertebra Fracture (Old)" and degree of disability is quanitified as "66%" .  

He sought benefits of Tax Concession to buy an adapted car available to persons with Disabiliites. However, the Government authorities refused him the benefit saying that he is not a person with disability according to the Persons with Disabilities Act 1995 since he is not suffering from blindness, low vision, mental illness, mental retardation, hearing impairment or locomotor impairment! This is despite that fact that the gentleman has no voluntary control over his stools and has problems in independent mobility.

Lessons

Even the draft of the new Rights of Persons with Disabilities Bill 2012 which is to replace the existing Disabilities Act 1995 doesn't address this issue and still revolves around the etiology and types of disabilities without looking at the effect of the disability on the normal living of the person affected and the accommodations required by the person to be able to functional on an equal basis with others to ensure his fundamental right of equality to him. We need to move beyond types of impairment to the effects of the impairment the person faces in terms of disabilities while interacting with the social and environmental barriers and derive the accommodations that the person may require. 

The amended Americans with Disabilities Act (ADA) even recognises a disability which may not be actually there but may be perceived by others in addition to the major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. 

We seriously need to consider this before the present bill gets passed in the present form. Below is the news coverage on Bombay High Court admitting a case of  person recovered from Cancer with residual impairments/ disabilities.

TREAT CANCER - CURED AS DISABLED: PLEA IN COURT
Rosy Sequeira, TNN | Aug 5, 2013, 01.40 AM IST

MUMBAI: The Bombay high court has sought responses from the central and state coordination committees for persons with disabilities after a teacher cured of cancer approached it, demanding the same rights granted to disabled people. 

Solapur resident Vinod Tambe was diagnosed with blood cancer in 1977 at the age of seven. He was treated at Tata Memorial Hospital, and on March 16, 2005, issued a certificate by Chhatrapati Shivaji Maharaj Central Hospital in Solapur declaring him "cancer-cured handicap". Still, in spite of this, Tambe found that he was not allowed to access facilities for handicapped people. The primary school teacher subsequently moved court. 

Tambe is seeking the benefits accorded to disabled persons in healthcare, public transportation, education and employment. "The government should be considerate towards someone who has gone to the doorsteps of death and returned. Even though I am cured I still go through body pain. I am not like a normal person," he said. 

Tambe's advocate M S Karnik, during a hearing on July 12, pointed out that a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. 

But the Maharashtra government maintains that the circular was superseded by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The definitions of disabilities listed in the act do not cover Tambe's case, it says. 

Karnik argued that the authorities erred in applying a narrow definition of the term "disability": "A person who has suffered from blood cancer even after getting cured does suffer from disabilities arising from weakness of the bones, joints or muscles, leading to substantial restriction of the movement of limbs." Karnik added that Tambe's case can be classified under locomotor disability, which is recognised under the 1995 act. 

The advocate contended that various additional forms of disabilities should be covered under the act and the Right of Persons with Disabilities Bill, 2012. Because of the current narrow definitions, he said, many people are getting deprived of disability benefits. 

Agreeing with him, a division bench of Chief Justice Mohit Shah and Justice M S Sanklecha gave the instance of the rare genetic disorder Hunter's syndrome. In this, an enzyme the body needs is missing or insufficiently generated, the judges said, leading to progressive damage, affecting development and organ function. 

Karnik said among the responsibilities of the central and state coordination committees is to continuously evolve policies to solve the problems faced by disabled people and to advise Central and state governments. The judges issued notices to the committees and posted the next hearing on August 7.

MAKING A CASE

THE PETITIONER

Vinod Tambe was diagnosed with blood cancer in 1977 and treated at Tata Memorial Hospital. In 2005, he was issued a certificate by Chhatrapati Shivaji Maharaj Central Hospital in Solapur declaring him 'cancer-cured handicap'

THE PLEA

Cancer survivors should be granted the rights given to disabled people

Disabilities Under Right of Persons with Disabilities Bill, 2012

1) Autism spectrum disorder 2) Blindness 3) Cerebral palsy 4) Chronic neurological conditions 5) Deafblindness 6) Haemophilia 7) Hearing impairment 8) Intellectual disability 9) Leprosy cured 10) Locomotor disability 11) Low vision 12) Mental illness 13) Muscular dystrophy 14) Multiple sclerosis 15) Specific learning disability 16) Speech and language disability 17) Thalassaemia 18) Multiple disabilities (two or more disabilities listed as one to 17 occurring in a person at the same time)

Disabilities Defined Under Persons with Disabilities Act, 1995

1) Blindness 2) Low vision 3) Leprosy-cured 4) Hearing impairment 5) Locomotor disability 6) Mental retardation 7) Mental illness

Times View


The government should treat such cases with utmost sympathy instead of going purely by the rulebook. And, if need be, rules should change to provide relief to people in distress. The court has done the right thing by indicating there may be a need to take a fresh look at the law.





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